n the recent case of Manchester Property Development Holdings and Stephen Beech v Kuit Steinart Levy [2025] EWHC 35 (Comm), Dame Clare Moulder DBE adjourned a substantial trial due to take place in the Commercial Court after leading counsel for the defendant was unexpectedly taken ill. The judge concluded that a fair trial could not be guaranteed…

In arbitration, the parties are free to choose the law to determine the substantive issues in dispute (the substantive law). This freedom is recognised by section 46(1)(a) of the Arbitration Act 1996 (the 1996 act) which requires the arbitral tribunal to decide the issues in dispute in accordance with the law chosen by the parties…

Although Churchill v Merthyr Tydfil [2023] EWCA Civ 1416 is concerned with the power to compel parties to engage in alternative dispute resolution (ADR) during court proceedings, it may also be relevant to the pre-action stage of disputes. This is because pre-action protocols have become increasingly interconnected with the court process (see Jet2 Holidays Ltd v Hughes [2019] EWCA…

In Morris v Williams [2025] EWHC 218 (KB), District Judge Dodsworth (sitting as a judge of the High Court) considered the ‘unambiguous impropriety’ exception to the without prejudice rule in respect of a letter which had been written by the claimant’s solicitors and marked ‘Without prejudice save as to costs’ (the letter). The law Without…

Before the recent decision in Dandara South East Ltd v Medway Preservation Ltd & Anor [2024] EWHC 2318 (Ch), there was no decided authority on the question of whether an expert determination (ED) clause can be separable from the underlying agreement, in the way that an arbitration clause is separable from the agreement (Fiona Trust…

Powerful voices have called for the recognition of a new type of privilege for mediators – a ‘mediation privilege’. This would be wider than the established without prejudice privilege rule (for example, see Briggs J, as he then was, ‘on the search for a proportionate way of ensuring confidentiality in mediation’ ((2009) NLJ). The opportunity…

n 1 October 2024, the new Civil Procedure Rules (CPR) on alternative dispute resolution (ADR) came into effect to reflect the landmark decision in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, in which the Court of Appeal held that the courts could compel disputing parties to engage with ADR. In this article, we briefly revisit…

In Kindertons Ltd v (1) Georgina Murtagh (2) Esure Services Ltd [2024] EWHC 471 (KB), Turner J considered a challenge to a non-party costs order (NPCO). The trial judge found that the damages claimed by the claimant in her personal injury matter had not been caused in the accident and that the claimant and her husband were…

It is trite law that, where a party unreasonably refuses to engage with an alternative dispute resolution (ADR) procedure, that party risks being penalised in costs (Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576). Remaining silent in the face of an invitation to engage with ADR is, as a general rule, unreasonable conduct,…

Civil Procedure Rule 44.10 makes clear that, where an order is silent as to costs, no party is entitled to the costs in relation to that order. In Ashok Kapoor v Baltaj Johal [2024] EWHC 551 (KB), Julian Knowles J considered an appeal challenging an order which sought to vary earlier orders which did not deal with…